Australian Competition and Consumer Commission v Boral Ltd (No 2)

[2004] FCA 1122

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Boral Ltd (No 2)
[2004] FCA 1122

PRACTICE & PROCEDURE – application for adjournment of trial

AUSTRALIAN CONSUMER & COMPETITION COMMISSION v BORAL LTD
(NO. 2)
V699 of 2004

HEEREY J
27 AUGUST 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V699 OF 2004

BETWEEN:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION APPLICANT
AND:	BORAL LIMITED (ACN 008 421 761) RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	27 AUGUST 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   The Applicant file and serve any further Affidavits upon which it proposes to rely, or in the alternative drafts therein, by 6 September 2004.

2.   The Applicant serve a list of the documents upon which it proposes to rely by 13 September 2004.

3.   The Respondent file and serve any further affidavits, or in the alternative drafts therein, and a list of the documents upon which it proposes to rely by 20 September 2004.

4.   The parties file and serve written lists of objections 6 September 2004 to all of the affidavit material already filed.

5.   The parties file and serve written lists of objections to all affidavit material filed hereafter within 3 days of receipt of such affidavits.

6.   The parties file and serve responses to lists of objections within 3 days of receipt of the lists of objections.

7.   The parties file and serve any affidavits of expert witnesses upon which they propose to rely by 8 October 2004.

8.   An agreed Court Book to be filed and served by 8 October 2004.

9.   By 8 October 2004 a timetable for the calling of witnesses and the making of submissions within the time fixed for trial, and a schedule of factual and legal issues (expressed wherever appropriate in question form) be produced by the parties.

10.  The trial is adjourned to a date to be fixed (estimate of 8 weeks).

11.  To the extent not inconsistent with these directions the earlier directions will remain in force.

12.  Costs reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V699 OF 2004

BETWEEN:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION APPLICANT
AND:	BORAL LIMITED (ACN 008 421 761) RESPONDENT

JUDGE:	HEEREY J
DATE:	27 AUGUST 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The trial of this matter has been fixed for next Monday, 30 August 2004.  Boral applies for an adjournment of the trial to a date to be fixed.  The Commission opposes this application. 

2. Reluctant as I am to come to this conclusion, I am satisfied that a fair trial could not be had if it were to commence on Monday.  Senior counsel for Boral has told the Court that the volume of material recently received, and other material foreshadowed, is such that counsel would be compromised in their ability to adequately defend their client.  I place considerable weight on that statement.  In any event, it is supported by the circumstances.

3. The Commission's affidavits, forty two so far, have been filed late.  The Commission says it will rely on a further four affidavits. It has provided bare summaries, which are sufficient to show that considerable detail will be involved.  Substantial amounts of documentary material have not yet been provided to Boral, and in particular documents subpoenaed from Independent Cement and Lime Ltd.  Boral itself has not yet filed its main affidavits.  Until at least all substantial affidavits are filed, it is not possible for counsel to get a proper view of the case as a whole and be in a position to isolate the real issues. 

4. I do not wish to allocate blame for the present state of affairs.  The important thing is that the trial cannot fairly begin on Monday.  Senior counsel for the Commission fairly conceded that no prejudice will be suffered by his client, given that an undertaking by Boral not to proceed with the impugned bid for Adelaide Brighton Cement Ltd will remain in place. 

5. Under the current directions, the trial was to commence next week, be adjourned at the end of that week to 13 September for another week, and then proceed for three weeks from 11 October.  One option is for an adjournment to 11 October.  I have prior commitments which would mean that the trial would have to resume in February next year.  The other option is for the trial to be adjourned to a date to be fixed to be heard by another judge.  I think the latter is the more sensible course.  A substantial gap in the proceeding would be inefficient and would probably work to the disadvantage of the Commission.

6. I will therefore adjourn the trial to a date to be fixed.  After hearing counsel I make the following directions:

   13.  The Applicant file and serve any further Affidavits upon which it proposes to rely, or in the alternative drafts therein, by 6 September 2004.

   14.  The Applicant serve a list of the documents upon which it proposes to rely by 13 September 2004.

   15.  The Respondent file and serve any further affidavits, or in the alternative drafts therein, and a list of the documents upon which it proposes to rely by 20 September 2004.

   16.  The parties file and serve written lists of objections 6 September 2004 to all of the affidavit material already filed.

   17.  The parties file and serve written lists of objections to all affidavit material filed hereafter within 3 days of receipt of such affidavits.

   18.  The parties file and serve responses to lists of objections within 3 days of receipt of the lists of objections.

   19.  The parties file and serve any affidavits of expert witnesses upon which they propose to rely by 8 October 2004.

   20.  An agreed Court Book to be filed and served by 8 October 2004.

   21.  By 8 October 2004 a timetable for the calling of witnesses and the making of submissions within the time fixed for trial, and a schedule of factual and legal issues (expressed wherever appropriate in question form) be produced by the parties.

   22.  The trial is adjourned to a date to be fixed (estimate of 8 weeks).

   23.  To the extent not inconsistent with these directions the earlier directions will remain in force.

   24.  Costs reserved.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             27 August 2004

Counsel for the Applicant:	Mr N J Young QC with Mr M H O’Bryan
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr A J L Bannon SC with Mr I B Stewart
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	27 August 2004
Date of Judgment:	27 August 2004